NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1945-18T4
HICCSON GOMEZ,
Plaintiff-Respondent,
v.
TIMOTHY J. KENNEDY, M.D., RUTGERS, THE STATE UNIVERSITY OF N.J., RUTGERS, and THE CANCER INSTITUTE OF N.J.,
Defendants-Appellants,
and
RWJ-MG, THE CANCER INSTITUTE OF N.J.,
Defendant. ________________________________
Argued September 18, 2019 – Decided October 8, 2019
Before Judges Fuentes, Haas and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5837-17. Russell J. Malta argued the cause for appellants (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Paul F. Schaaff, of counsel; Russell J. Malta, on the brief).
Kendall S. Murphy argued the cause for respondent.
PER CURIAM
In this medical malpractice cause of action, defendants Timothy J.
Kennedy, M.D.; Rutgers, The State University of N.J.; Rutgers, and The Cancer
Institute of N.J. appeal from the order of the Law Division that denies their
motion to dismiss plaintiff Hiccson Gomez's complaint for his failure to file the
notice of claim required by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to
59:13-10, in a timely fashion. Defendants also appeal from the order that grants
plaintiff's cross-motion to file the required notice of claim more than one year
after he filed his complaint in the action. We reverse. We derive the following
facts from the certifications submitted by the parties in support of their
respective motions.
Plaintiff was diagnosed with colon cancer in 2009. He initially had
laparoscopic surgery and was declared in remission for a period of five years.
When the cancer returned in 2014, he consulted with other physicians who
suggested he receive interventional radiation and a surgically placed "colostomy
bag . . . on the left side of [his] body." Plaintiff consulted with Dr. Timothy
A-1945-18T4 2 Kennedy, a staff physician and Associate Professor of Surgery in the
Gastrointestinal Oncology Program at Rutgers, the Cancer Institute, a
Department of Rutgers – The State University of New Jersey. On October 5,
2015, Dr. Kennedy surgically removed plaintiff's colostomy bag. Plaintiff's
surgery and post-operative visits with Dr. Kennedy all took place in the Cancer
Institute that was connected by a bridge to the University Hospital complex.1
All of Dr. Kennedy's post-operative appointments with plaintiff occurred in the
Rutgers Cancer Institute building.
Plaintiff alleges that three months after the surgery, he noticed "a rush of
air, like flatulence, whenever [he] attempted to urinate." When this problem
persisted, he consulted his oncologist, whom, in turn, referred him to other
physicians. According to plaintiff, these physicians told him he had a fistula,
which was caused by the "technical mistake" of his colon being stapled to his
bladder. Plaintiff does not identify the exact date these doctors revealed to him
this astonishing medical error. However, he made the following admission in
his certification in support of his motion to file an untimely TCA notice in this
case:
1 As part of his appendix, plaintiff included a photograph that depicts the bridge of the medical complex with the name: "Robert Johnson University Hospital and Rutgers Cancer Institute of New Jersey." A-1945-18T4 3 I did not have a desire to commence a lawsuit, and was willing to deal with the noise when urinating to avoid any additional struggles. It wasn’t until mid-to-late 2016 that I even realized that Dr. Kennedy made a mistake.
Plaintiff retained the attorney who represents him in this case on May 5,
2017. Counsel filed the complaint alleging medical malpractice five months
later, on October 3, 2017. The complaint named as defendants Dr. Kennedy,
Rutgers, the State University of New Jersey, Rutgers, the Cancer Institute of
New Jersey, and RWJ-MG, the Cancer Institute of New Jersey. He filed an
amended complaint two days later on October 5, 2017. Plaintiff's complaint
laid dormant until April 20, 2018, when the Middlesex Vicinage Civil Division
Manager administratively dismissed the complaint without prejudice for lack of
prosecution pursuant to Rule 1:13-7.
Plaintiff's counsel finally served defendants with process on July 19, 2018,
and the trial court restored the complaint to the active trial calendar on August
3, 2018. On September 19, 2018, defendants moved to dismiss the complaint
based on plaintiff's failure to serve a timely TCA notice of claim, as required
under N.J.S.A. 59:8-8, which provides, in relevant part:
A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the 90th day after accrual of the cause of action. After the
A-1945-18T4 4 expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if:
a. The claimant failed to file the claim with the public entity within 90 days of accrual of the claim except as otherwise provided in [N.J.S.A.] 59:8-9; or
b. Two years have elapsed since the accrual of the claim; or
c. The claimant or the claimant’s authorized representative entered into a settlement agreement with respect to the claim.
[(Ibid. (emphasis added)).]
On October 18, 2018, plaintiff filed a cross-motion seeking leave of court
to serve defendants with an untimely TCA tort claims notice. Plaintiff's motion
was predicated on the relief available under N.J.S.A. 59:8-9, which provides:
A claimant who fails to file notice of his claim within 90 days as provided in [N.J.S.A.] 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8
A-1945-18T4 5 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.
As a threshold issue, the motion judge mistakenly analyzed defendants'
motion to dismiss under the standard codified by Rule 4:6-2(e). This erroneous
approach caused the judge to disregard the public policy underpinning the TCA.
The Legislature adopted the TCA to "reestablish the immunity of public entities
while coherently ameliorating the harsh results of the doctrine." Beauchamp v.
Amedio, 164 N.J. 111, 115 (2000). Thus, "[n]o action shall be brought against
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1945-18T4
HICCSON GOMEZ,
Plaintiff-Respondent,
v.
TIMOTHY J. KENNEDY, M.D., RUTGERS, THE STATE UNIVERSITY OF N.J., RUTGERS, and THE CANCER INSTITUTE OF N.J.,
Defendants-Appellants,
and
RWJ-MG, THE CANCER INSTITUTE OF N.J.,
Defendant. ________________________________
Argued September 18, 2019 – Decided October 8, 2019
Before Judges Fuentes, Haas and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5837-17. Russell J. Malta argued the cause for appellants (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Paul F. Schaaff, of counsel; Russell J. Malta, on the brief).
Kendall S. Murphy argued the cause for respondent.
PER CURIAM
In this medical malpractice cause of action, defendants Timothy J.
Kennedy, M.D.; Rutgers, The State University of N.J.; Rutgers, and The Cancer
Institute of N.J. appeal from the order of the Law Division that denies their
motion to dismiss plaintiff Hiccson Gomez's complaint for his failure to file the
notice of claim required by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to
59:13-10, in a timely fashion. Defendants also appeal from the order that grants
plaintiff's cross-motion to file the required notice of claim more than one year
after he filed his complaint in the action. We reverse. We derive the following
facts from the certifications submitted by the parties in support of their
respective motions.
Plaintiff was diagnosed with colon cancer in 2009. He initially had
laparoscopic surgery and was declared in remission for a period of five years.
When the cancer returned in 2014, he consulted with other physicians who
suggested he receive interventional radiation and a surgically placed "colostomy
bag . . . on the left side of [his] body." Plaintiff consulted with Dr. Timothy
A-1945-18T4 2 Kennedy, a staff physician and Associate Professor of Surgery in the
Gastrointestinal Oncology Program at Rutgers, the Cancer Institute, a
Department of Rutgers – The State University of New Jersey. On October 5,
2015, Dr. Kennedy surgically removed plaintiff's colostomy bag. Plaintiff's
surgery and post-operative visits with Dr. Kennedy all took place in the Cancer
Institute that was connected by a bridge to the University Hospital complex.1
All of Dr. Kennedy's post-operative appointments with plaintiff occurred in the
Rutgers Cancer Institute building.
Plaintiff alleges that three months after the surgery, he noticed "a rush of
air, like flatulence, whenever [he] attempted to urinate." When this problem
persisted, he consulted his oncologist, whom, in turn, referred him to other
physicians. According to plaintiff, these physicians told him he had a fistula,
which was caused by the "technical mistake" of his colon being stapled to his
bladder. Plaintiff does not identify the exact date these doctors revealed to him
this astonishing medical error. However, he made the following admission in
his certification in support of his motion to file an untimely TCA notice in this
case:
1 As part of his appendix, plaintiff included a photograph that depicts the bridge of the medical complex with the name: "Robert Johnson University Hospital and Rutgers Cancer Institute of New Jersey." A-1945-18T4 3 I did not have a desire to commence a lawsuit, and was willing to deal with the noise when urinating to avoid any additional struggles. It wasn’t until mid-to-late 2016 that I even realized that Dr. Kennedy made a mistake.
Plaintiff retained the attorney who represents him in this case on May 5,
2017. Counsel filed the complaint alleging medical malpractice five months
later, on October 3, 2017. The complaint named as defendants Dr. Kennedy,
Rutgers, the State University of New Jersey, Rutgers, the Cancer Institute of
New Jersey, and RWJ-MG, the Cancer Institute of New Jersey. He filed an
amended complaint two days later on October 5, 2017. Plaintiff's complaint
laid dormant until April 20, 2018, when the Middlesex Vicinage Civil Division
Manager administratively dismissed the complaint without prejudice for lack of
prosecution pursuant to Rule 1:13-7.
Plaintiff's counsel finally served defendants with process on July 19, 2018,
and the trial court restored the complaint to the active trial calendar on August
3, 2018. On September 19, 2018, defendants moved to dismiss the complaint
based on plaintiff's failure to serve a timely TCA notice of claim, as required
under N.J.S.A. 59:8-8, which provides, in relevant part:
A claim relating to a cause of action for death or for injury or damage to person or to property shall be presented as provided in this chapter not later than the 90th day after accrual of the cause of action. After the
A-1945-18T4 4 expiration of six months from the date notice of claim is received, the claimant may file suit in an appropriate court of law. The claimant shall be forever barred from recovering against a public entity or public employee if:
a. The claimant failed to file the claim with the public entity within 90 days of accrual of the claim except as otherwise provided in [N.J.S.A.] 59:8-9; or
b. Two years have elapsed since the accrual of the claim; or
c. The claimant or the claimant’s authorized representative entered into a settlement agreement with respect to the claim.
[(Ibid. (emphasis added)).]
On October 18, 2018, plaintiff filed a cross-motion seeking leave of court
to serve defendants with an untimely TCA tort claims notice. Plaintiff's motion
was predicated on the relief available under N.J.S.A. 59:8-9, which provides:
A claimant who fails to file notice of his claim within 90 days as provided in [N.J.S.A.] 59:8-8 of this act, may, in the discretion of a judge of the Superior Court, be permitted to file such notice at any time within one year after the accrual of his claim provided that the public entity or the public employee has not been substantially prejudiced thereby. Application to the court for permission to file a late notice of claim shall be made upon motion supported by affidavits based upon personal knowledge of the affiant showing sufficient reasons constituting extraordinary circumstances for his failure to file notice of claim within the period of time prescribed by section 59:8-8
A-1945-18T4 5 of this act or to file a motion seeking leave to file a late notice of claim within a reasonable time thereafter; provided that in no event may any suit against a public entity or a public employee arising under this act be filed later than two years from the time of the accrual of the claim.
As a threshold issue, the motion judge mistakenly analyzed defendants'
motion to dismiss under the standard codified by Rule 4:6-2(e). This erroneous
approach caused the judge to disregard the public policy underpinning the TCA.
The Legislature adopted the TCA to "reestablish the immunity of public entities
while coherently ameliorating the harsh results of the doctrine." Beauchamp v.
Amedio, 164 N.J. 111, 115 (2000). Thus, "[n]o action shall be brought against
a public entity or public employee under this act unless the claim upon which it
is based shall have been presented in accordance with the procedure set forth in
this chapter." N.J.S.A. 59:8-3. Stated differently, "in balancing the liability and
immunity provisions of the TCA, 'immunity is the rule and liability is the
exception.'" Smith v. Fireworks by Girone, Inc., 180 N.J. 199, 207 (2003)
(quoting Posey ex rel. Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 181-
82 (2002)). The immunity provisions of the TCA also extend to public
employees. Lowe v. Zarghami, 158 NJ 606, 615 (1999).
A-1945-18T4 6 The trial court must apply "a sequential analysis" in determining whether
a late notice of claim is appropriate. Beauchamp, 164 N.J. at 118. "The first
task is always to determine when the claim accrued." Id. The accrual date occurs
when plaintiff knows he is injured and that a public entity caused the injury. Id.
at 119. For example in Lowe, 158 N.J. at 611, although plaintiff's surgery took
place on September 26, 1994, she did not become aware of any medical
malpractice until August 1995 after a follow-up appointment with another
doctor. The Court determined that the August 1995 date was the date of accrual
even though plaintiff was not aware that defendant was a public employee at the
time. Id. at 625; but see Beauchamp, 164 N.J. at 119 (holding that the date of
accrual was the date of the car accident between the plaintiff and an NJ transit
bus because plaintiff was immediately aware of her injuries and that a public
employee was responsible.).
The date of accrual is a critical and often dispositive factor in this analysis
because:
[A] judge is powerless under the statute to exercise any discretion or to act after a period of one year has elapsed from the date on which the cause of action accrued, where the application to the court by motion for permission to file a late notice of claim has not been made within the year.
A-1945-18T4 7 [(Fuller v. Rutgers, State University, 154 N.J. Super. 420, 423 (App. Div. 1977)).]
Here, plaintiff averred in his certification that he was aware of his right to
sue in "mid-to-late 2016." In order to permit the court to determine the accrual
date, plaintiff must use more precise language to identify the date when he
learned the cause of his medical condition. His medical records would easily
and reliably provide more precise information about the date he was informed
that his colon and bladder had been stapled together as a consequence of a
"technical mistake." Given plaintiff's ambiguous phraseology, a reasonable
reading or interpretation of "mid-to-late 2016" allows this court to conclude
plaintiff's cause of action accrued between June 2016 and December 2016.
Assuming plaintiff's accrual date is December 31, 2016, pursuant to
N.J.S.A. 59:8-8, plaintiff was required to serve defendants with a proper TCA
notice of claim by March 30, 2017. Plaintiff did not file his complaint with the
court until October 3, 2017, and did not serve defendants with process until July
19, 2018. Finally, plaintiff did not file his cross-motion for leave to serve
defendants with a late notice of claim until October 18, 2018. As the Supreme
Court made clear in D.D. v. Univ. of Med. & Dentistry of N.J., "neither
inattention nor incompetence of counsel meets the extraordinary circumstances
test devised by the Legislature." 213 N.J. 130, 135 (2013). The uncontested
A-1945-18T4 8 chronology of events we have described here does not give plaintiff any grounds
to support a finding of "extraordinary circumstances." There is no legal or
factual basis that entitles plaintiff to any relief under N.J.S.A. 59:8-9.
Reversed.
A-1945-18T4 9